Month: April 2018

Does one party’s breach of a contract release the non-breaching party’s obligation to a third-party beneficiary?

Posted on by Jeff Jaeger

Picture of a woman tearing a contract

Cain vs. Price (Nev. Supreme Ct. – Apr. 12, 2018)

The promisor in this case failed to fulfill its contractual obligations under a settlement agreement. The third-party beneficiaries claimed they were entitled to the contract’s release provision when the non-breaching party elected to seek damages for the promisor’s breach of the contract.

The Cains, as owners of Heli Ops International, entered into a joint venture agreement (JVA) with C4 Worldwide, Inc. The JVA provided that Heli Ops would loan $1,000,000 to C4 for the purpose of acquiring and then leveraging Collateralized Mortgage Obligations (CMOs). In return, Heli Ops would receive the first $20,000,000 in profits from C4’s leveraging of the assets, while retaining a 49 percent security interest in the CMOs until C4 had paid out that amount. The Cains transferred $1,000,000 to C4, but C4 did not distribute any profits to the Cains.

The Cains subsequently entered into a Settlement Agreement and Release of All Claims with C4 and its CEO. In the Settlement Agreement, C4 agreed to pay the Cains $20,000,000 no later than 90 days from February 25, 2010. In return, the Cains agreed to release C4 and its officers from any liability for C4’s financial misfortunes and resultant inability to timely pay. The Agreement further provided that California law governed its construction and interpretation and that the prevailing party in any action arising under the Settlement Agreement would be entitled to fees and costs.

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Nevada Appellate Courts Advance Opinions for April 12, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for April 12, 2018

CAIN VS. PRICE C/W 69889/70864

  • Does one party’s material breach of a contract release the non-breaching party’s contractual obligation to a third-party beneficiary.

U.S. HOME CORP. VS. THE MICHAEL BALLESTEROS TRUST

  • Does the Federal Arbitration Act (FAA) govern the arbitration agreement contained in a common-interest community’s Covenants, Conditions, and Restrictions (CC&Rs).

CLARK CTY. OFFICE OF THE CORONER/MED. EXAM’R VS. LAS VEGAS REVIEW JOURNAL

  • Is a local government entity that moved for a stay under NRCP 62, entitled to a stay of a money judgment without bond or other security.

Visit the Nevada Appellate Report for more legal news.

Is a telephonic search warrant containing a false statement valid?

Posted on by Jeff Jaeger

Crime scene with detective on a ceellphone

State vs. Sample (Gregory) (Nev. Supreme Ct. – Apr. 5, 2018)

Sample was arrested for driving under the influence of alcohol after failing a preliminary breath test (PBT). The results of the PBT were subsequently used to obtain a search warrant for an evidentiary blood draw. The district court suppressed the PBT results, concluding that they were obtained in violation of Sample’s Fourth Amendment rights, and also suppressed the evidentiary blood draw as the fruit of an illegal search. The State argued on appeal that the district court erred because Sample was under arrest at the time the PBT was administered, the PBT was a legal search incident to the arrest, and the blood evidence was legally obtained pursuant to the search warrant.

While on patrol one night, Deputy Swanson noticed a northbound vehicle cross over fog lines and double yellow lines, accelerate rapidly, cross into a southbound turn lane, and veer back into the northbound travel lane. Deputy Swanson first activated his overhead lights, and then activated his siren in an attempt to initiate a traffic stop. The vehicle did not stop and continued driving to Sample’s residence where it pulled into the driveway.

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Nevada Appellate Courts Advance Opinions for April 5, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for April 5, 2018

STATE VS. SAMPLE (GREGORY)

  • Does a preliminary breath test that is not administered pursuant to a warrant or an exception to the warrant requirement, violate the Fourth Amendment.
  • Is a telephonic search warrant that contains a false statement valid.

KIRSCH VS. TRABER

  • What is the definition of a “final judgment.”

NANCE V. FERRARO

  • Is a district court barred from reviewing the facts and evidence underpinning its prior rulings or custody determinations in deciding whether the modification of a prior custody order is in the child’s best interest.
  • Are parties prohibited from presenting previously known domestic violence evidence defensively to show modification to a custody determination is not in the child’s best interest.

Visit the Nevada Appellate Report for more legal news.

When are government employees’ private cellphone and email records public record?

Posted on by Jeff Jaeger

Person holding a cellphone

Comstock Resident’s Ass’n vs. Lyon Cty. Bd. of Comm’rs (Nev. Supreme Ct. – Mar. 29, 2018)

In this appeal, the Supreme Court of Nevada considered a district court’s denial of a petition for a writ of mandamus to compel disclosure of records where members of the Lyon County Board of Commissioners conducted county business on private cellphones and email accounts.

In 2013, the Lyon County Board of Commissioners received an application to alter the zoning within Lyon County to allow for industrial development. The Board received reports from the county’s planning staff and held public hearings, after which they voted to recommend denying the proposed zoning change. At a subsequent meeting of the county commissioners, the issue was reintroduced and the zoning change approved. The Comstock Residents Association (CRA), brought suit against the Board, challenging the approval of the zoning change.

As part of that suit, CRA made a public records request of Lyon County and its commissioners, seeking communications concerning the approval of the zoning change, regardless of whether they occurred on public or private devices. Lyon County provided phone records, emails, and other records that were created or maintained on county equipment and some public records created on private devices as well. However, Lyon County also notified CRA that it did not provide or pay for phones or email accounts to any commissioners. The county’s website listed the commissioners’ personal phone numbers and email addresses as their contact information. The county conceded that these private telephones and email addresses were used to conduct county business.

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